Kenneth Wayne Thomas v. State ( 2020 )

Order entered December 18, 2020
In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-20-00670-CR
KENNETH WAYNE THOMAS, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 194th Judicial District Court
Dallas County, Texas
Trial Court Cause No. F86-85539-M
ORDER
Before Chief Justice Burns, Justice Myers, and Justice Pedersen
Before the Court is appellant’s December 12, 2020 letter which we shall
treat as a motion to reconsider our December 8, 2020 order. In the motion,
appellant clarifies that he seeks to supplement the record with the reporter’s record
filed in the Texas Court of Criminal Appeals from appellant’s second direct appeal
“if required to meet the requirements of preparing an ‘Anders’ brief being filed,”
not the 70-volume record from his 1987 original conviction.
In 1987, appellant was tried, convicted, and sentenced to death for capital
murder. That conviction was affirmed following a direct appeal to the Texas Court
of Criminal Appeals. Thomas v. State, No. AP-69,938 (Tex. Crim. App. June 8,
1994) (not designated for publication). In 2010, the court of criminal appeals
granted habeas corpus relief as to punishment only. Ex parte Thomas, No. AP-
76,405 (Tex. Crim. App. Aug. 25, 2010) (per curiam). The trial court held a new
punishment hearing in 2014, and appellant again received a death sentence. On
direct appeal, the court of criminal appeals held that appellant was entitled to
another new punishment hearing because the jury was not presented with the
proper diagnostic framework regarding appellant’s claim of intellectual disability.
Thomas v. State, No. AP-77,047, 2018 WL 6332526, at *1–2 (Tex. Crim. App.
Dec. 5, 2018) (not designated for publication). On June 4, 2020, after the State
withdrew its motion to seek the death penalty, the trial court sentenced appellant to
life in prison.
Appellant filed an appeal of the 2020 punishment hearing in which he was
sentenced to life in prison. Because the court of criminal appeals already reviewed
the 1987 conviction and the 2014 punishment hearing, the only relevant reporter’s
records for this Court’s review are those from hearings held in the trial court after
the court of criminal appeals’ December 5, 2018 remand for another new
punishment hearing. See Patterson v. State, 101 S.W.3d 150, 152 (Tex. App.—
Fort Worth 2003, pet. ref’d) (holding that a point on appeal from a punishment
retrial that concerns matters from the guilt/innocence phase presents nothing for
review); cf. Lopez v. State, 18 S.W.3d 637, 639 (Tex. Crim. App. 2000) (observing
that, when an appellate court remands a case on punishment only, it effectively
affirms the conviction on guilt/innocence and reverses the conviction on
punishment, thereby limiting the trial court’s jurisdiction to punishment issues).
These volumes, # 16 and #17, are on file with the Court.
Because reporter’s records from any trial court proceedings held before
December 5, 2018 are irrelevant to this appeal, we DENY appellant’s motion to
supplement the appellate record. We DENY appellant’s motion to reconsider our
previous ruling.
/s/ ROBERT D. BURNS, III
CHIEF JUSTICE